SCOTUS passes on big affirmative action decision

The Supreme Court gave a reprieve Monday to affirmative action programs in higher education, as the justices revived a challenge to a University of Texas diversity program but stopped short of an explicit up-or-down ruling on its constitutionality.

In a 7-1 decision, Justice Anthony Kennedy faulted lower courts for failing to insist that the university demonstrate that the program was “narrowly tailored” to meet its goals. The high court decision emphasized “strict scrutiny” for educational affirmative action programs, but didn’t exclude the possibility that UT or other schools would be able to show such efforts to be carefully managed to limit their impact on potential students that the school doesn’t view as contributing to diversity.

“The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference,” Kennedy wrote. “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”

Kennedy’s majority opinion attracted the votes of all the court’s conservatives as well as two liberals, Justices Stephen Breyer and Sonia Sotomayor. Justice Ruth Bader Ginsburg was the sole dissenter, while Justice Elena Kagan was recused from the case.

Reading her opinion from the bench, Ginsburg suggested that her colleagues were pushing schools towards programs that took race into account, but made the mechanism so murky it was hard to fathom.

“Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them,” she said.

Ginsburg said the lower courts had followed precedent. “There is no need for a second look,” she said.

Kennedy and the rest of the majority disagreed. “Fairness to the litigants and the courts that heard the case requires that it be remanded to that the admissions process and be considered and judges under a correct analysis,” he wrote.

The decision is a loss for President Barack Obama’s administration, which had urged the justices to uphold the lower courts’ rulings. However, the blow was not as severe as it could have been. While Obama has said little publicly about affirmative action, Justice Department lawyers forcefully endorsed the Texas university’s approach and urged the justices not to put further restrictions on public colleges’ use of race in admissions decisions.

Under the University of Texas at Austin admissions system, about 75 percent of students are admitted by graduating in the top tier of public Texas high school classes. Originally, the top 10 percent of students qualified for automatic admission. For students applying this fall, the top 8 percent will be admitted.

Ginsburg drew some laughter in the courtroom Monday when she said those who consider the 10-percent system “race-neutral” are kidding themselves.

“But for de facto racial segregation in Texas’ neighborhoods and schools, there would be no ‘top 10 percent’ law,” she said, before reading a quote from Harvard law professor Thomas Reed Powell.

“If you think that you can think about a think inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind,” Powell said, prompting Ginsburg to add, “Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

Other spaces are filled through what UT/Austin calls “holistic review.”

Lawyers for Abigail Fisher, who was denied admission in 2008, argued in the case decided Monday that the “holistic review” gave African Americans, Latinos and other minorities such an outsized advantage that it violated the Supreme Court’s prior rulings on the use of race in government decisions.